Madras High Court
A.K. Subramanian vs K.Anandaraj Sowcar on 24 October, 2024
2024:MHC:3639
S.A. No. 749 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.09.2024
Pronounced on : 24.10.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
S.A. No.749 of 2013
and
M.P.No.1 of 2013
A.K. Subramanian ... Appellant
Versus
K.Anandaraj Sowcar ...Respondent
Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree dated 17.08.2012 made in
A.S.No.35 of 2011 on the file of the Subordinate Court, Madurantakam,
by confirming the judgment and decree dated 06.04.2011 made in
O.S.No.119 of 2004 on the file of the District Munsif Court,
Madurantakam.
For Appellant : Mr. P. Manish,
for Mr. I. Abrar Mohammed Abdullah
For Respondent : Mr. N. Varadharajan
1/18
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S.A. No. 749 of 2013
JUDGMENT
The plaintiff who lost before the Courts below has filed the
present Second Appeal.
2.The plaintiff has filed the suit in O.S. No.119 of 2004 before
the District Munsif Court, Madurantakam, seeking declaration of his title
to 'B' and 'C' Schedule properties; mandatory injunction directing the
defendant to remove the superstructure put up in the 'B' Schedule property
and permanent injunction restraining the defendant, their men and agents
from anyway putting up construction in 'C' Schedule property.
3.The detailed descriptions of the properties are as follows:-
(i) A-Schedule property:
Location : Kancheepuram District, Madurantakam Taluk,
Acharappakkam Town, Melandnai Madaveethi;
Survey Number: S.No.260/2B;
Dimensions : 23 feet (North to South) x 99 feet (East to West);
Boundaries : East by Site and Building owned by the defendant,
West by Street,
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North by Defendant's site and
South by Channel.
(ii) B-Schedule property:
Location : Northern side of 'A' Schedule property;
Dimensions: Site and Building measuring
42 feet (East to West) X 1 foot (North to South) together with
wall.
Boundaries:
East and West by Land and Building owned by defendant,
North by Defendant's house site,
South by remaining land and building in 'A' Schedule;
Marked in red colour in the plaint plan.
(iii) C-Schedule property:
Location : Northern side of 'A' Schedule property;
Dimensions : 12 feet (length) x 1 foot (breath)
Boundaries:
East and West by Plaintiff's 'A' Schedule property,
North by Defendant's site,
South by Remaining site of 'A' Schedule property.
Marked in Blue colour in the plaint plan.
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4. The plaintiff contended in the plaint that he is the absolute
owner of the property described in Schedule 'A', having purchased it from
descendants of Venugopala Reddiyar through a registered sale deed dated
14.09.1987 ad-measuring 99 feet (east to west) x 23 feet (north to south)
as a ready built house. The said property was obtained by getting loan
from Government as per Order in RC. No.102352/86/PBI dated
14.08.1987. The defendant's father purchased the adjacent property in the
northern side, with the same measurements to the extent of 99 feet x 23
feet. The vendors of the plaintiff and the defendant are brothers and they
have partitioned the property among themselves. The defendant's father
put up a construction on the first floor wall by encroaching 3 inches in the
plaintiff's property.
5. Thereafter, the defendant constructed first floor on the
adjacent eastern side to an extent of 42 feet by trespassing 1 foot in the ‘A’
schedule property and the same is described as ‘B’ schedule property in
the plaint. Despite the plaintiff's protests, the defendant continued the
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construction without obtaining permission from local authorities. Prior to
filing the suit, mediation attempts were made by well-wishers to resolve the
dispute. Therefore, the plaintiff did not file the suit immediately. The
plaintiff had contended that the defendant attempted to put up a
construction further east of the property, i.e., ground floor which is
described as ‘C’ Schedule property in the plaint. For this reason, the
plaintiff had filed the suit with the above said prayer.
6. The defendant filed his written statement stating that both the
plaintiff's and defendant's house properties were constructed by way of
madras tiled house with roof and rafters resting on the main common wall
in the 'B' Schedule property. According to the defendant, the roof of the
plaintiff's building and the defendant's building rest on the common wall
even before the date of purchase of the ‘A’ schedule property by the
plaintiff. More specifically, the defendant contended that the descriptions
made in the plaint with regard to the 'B' & 'C' Schedule properties are
incorrect and the plaintiff has no individual right over the said properties as
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claimed by the plaintiff in the plaint.
7. The said common wall is a cement-plastered mud wall on both
sides. Any disturbance or alteration to this wall would cause both buildings
to collapse entirely. The construction on the first floor by the defendant's
father was done with the knowledge and consent of the plaintiff's vendor,
who did not object to it as he was aware of the defendant's father's rights.
Therefore, the plaintiff is estopped from claiming any individual right over
the common wall due to their vendor's prior knowledge and acquiescence.
8. The Trial Court after examining the plaint and the written
statement filed by the respective parties, had formulated the following
issues:-
“(i) Whether the northern wall of the house
of the plaintiff is within the limits of 'A' Schedule
property?
(ii) Is the northern wall of plaintiff house is
a common wall to both plaintiff and defendant?
(iii) Is the plaintiff has exclusive right and
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title over plaint 'B' Schedule of property?
(iv) Is the plaintiff entitled for the relief of
declaration as to plaint 'B' Schedule property?
(v) Is the plaintiff entitled for the relief of
mandatory injunction with regard to 'B' Schedule
property?
(vi) Whether the plaintiff has right and title
over plaint 'C' Schedule property?
(vii) Is the plaintiff entitled for the relief of
declaration and Consequential relief of permanent
injunction in respect of 'C' Schedule of property?
(viii) What are all the other reliefs and cost
plaintiff is entitled for?”
9. Before the Trial Court, the plaintiff was examined as P.W.1,
and marked Ex.A1 to Ex.A7. On the side of the defendant, the defendant
was examined as D.W.1 and marked Ex.B1. Additionally, the surveyor
and the Advocate Commissioner were examined as C.W.1 & C.W.2 and
Ex.C1 and Ex.C1 were marked through them.
10. The Trial Court on appreciation of the oral and documentary
evidence concluded that the dispute revolves around the common wall
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between the plaintiff's and defendant's houses. While answering Issue Nos.
1 and 2, the Trial Court has examined the certified copy of sale deed
executed by Venugopal Reddiyar in favour of the plaintiff dated
14.09.1987 which is marked as Ex.A1 and the certified copy of sale deed
dated 10.07.1967 executed by Narayanasamy Reddiyar in favour of
Kachoorlal sowcar, the father of the defendant which is marked as Ex.B2.
11. The Trial Court noted that the exclusive right of the plaintiff
to the northern wall is not mentioned in any of the documents. The Trial
Court has considered that P.W.1, in which, the plaintiff has admitted that
the 1st floor as well as the roof of the house of defendant were inserted in
the northern wall prior to the purchase of ‘A’ Schedule property by the
plaintiff. The Trial Court found that the vendor has not taken any initiative
to remove the construction inserted in the northern wall through process of
law. Therefore the northern wall appears to be a common wall and the
plaintiff does not have exclusive right in the common wall.
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12. While addressing the issues 3 to 6, the Trial Court found that
the the width of the common wall is not mentioned in the plaint. The area
encroached by the defendant on the north to south direction is not
specifically pleaded by the plaintiff. Trial Court has taken a view that the
plaintiff has not proved that the defendant has put up construction by
encroaching more than his half share in the total width of the common wall
and that the surveyor who was examined as C.W.1 has not given a clear
report on the encroachment alleged by the plaintiff. The Trial Court has
come to the conclusion that the ‘B’ and ‘C’ schedule properties are not
proved to be the one half portion of the share of plaintiff in the total width
of the common wall. Therefore, the plaintiff does not have an exclusive
right and title over the ‘B’ and ‘C’ schedule properties. Consequently, the
Trial Court concluded that the plaintiff is not entitled to the mandatory
injunction and permanent injunction with respect to the ‘B’ and ‘C’
schedule properties and as such the suit in O.S.No.119 of 2004 was
dismissed.
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13. Aggrieved by the dismissal of the suit, the plaintiff preferred
an appeal in A.S. No. 35 of 2011 before the Subordinate Court,
Madurantakam.
14. During the pendency of the appeal before the First Appellate
Court, the plaintiff/appellant filed an interlocutory application in I.A. No.44
of 2012 to receive the original sale deed dated 14.09.1987 executed by
Venugopala Reddiyar in favour of the plaintiff, the original partition deed
dated 22.06.1942, which was executed between one Appavu Reddiyar and
his two sons and a letter dated 08.06.2011 written by the then District
Collector as additional evidence. The First Appellate Court has observed
that the said application ought to have been filed at the initial stage before
conclusion of trial by the Trial Court and the appellant ought not to have
filed the same at the appellate stage. However, considering the relief
claimed in the application, the First Appellate Court allowed the
application and marked the said documents as Ex. A8 to A10 while
framing the following points for consideration:-
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“ (i) Whether the appellant is entitled for
mandatory injunction and permanent injunction as
sought for ?
(ii) Whether the appellant have exclusive
right over the wall in the northern side of the
appellant’s house or it is a common wall?
(iii) Is the present appeal filed by the
appellant is maintainable?
(iv) Whether the judgment and decree of
the Trial Court be confirmed?
(v) To what other reliefs, the appellant is
entitled?”
15. Learned counsel for the appellant/plaintiff would contend
that the plaintiff has purchased the properties from Venugopala Reddiyar
and the defendant/respondent purchased his share of the property from the
brother of Venugopala Reddiyar namely Narayana Reddiyar. From the
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date of execution of the sale deed, the plaintiff is in possession and
enjoyment of the property and he got the absolute right over the property
by way of Ex.A1, dated 14.09.1987. The disputed common wall is in the
'B' Schedule and 'C' Schedule properties, which is located at the centre of
the properties of the appellant/plaintiff and the respondent/defendant. The
courts below, without proper analysis of Ex.A1/sale deed has come to an
erroneous conclusion that the plaintiff cannot assert any independent right
over the said property and therefore he prayed for allowing this appeal.
16. Per contra, learned counsel appearing for the respondent/
defendant would contend that the sale deed which was executed in favour
of Kachoorlal Sowcar, the father of the defendant on 10.07.1967 was
marked as Ex.B1. The plaintiff purchased the property only in the year
1987. The constructions put up by the plaintiff and the defendant rests on
the common wall which is disputed in this case. Further, he contended that
the plaintiff's vendor is well aware of the existence of the common wall in
the suit properties and therefore, he consented for construction on the first
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floor wall by the defendant's father. Hence, the claim of the
appellant/plaintiff is not maintainable.
17. The Advocate Commissioner's report dated 15.02.2008
marked as Ex. C1 and Surveyor's plan dt. 05.03.2008 marked as Ex. C2
also indicates that the properties of the appellant/plaintiff and the
respondent/defendant rests on the common wall. Therefore, both of them
cannot claim any exclusive right over the common wall in 'B' Schedule &
'C' Schedule properties. The learned counsel for the respondent submitted
that the courts below, upon elaborate analysis of the oral and documentary
evidence, refused to grant any relief to the plaintiff. Ultimately, he prayed
for dismissal of the second appeal.
18. Heard the learned counsel for the appellant/plaintiff and the
learned counsel appearing for the respondent/defendant and perused the
materials available on record.
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19. The only point for consideration is whether the
appellant/plaintiff has exclusive right over the 'B' & ‘C’ Schedule
properties. The said fact has already been decided by the Courts below and
the answer is not in favour of the appellant/plaintiff. The courts below have
arrived at such a conclusion on the basis of the recitals in the sale deed,
which was marked as Ex.A1 by the appellant/plaintiff and Ex. B1 marked
by the Respondent/Defendant. Ex.A1 would clearly show that there is no
mention about the exclusive right of the appellant over the wall in northern
side of the ‘A’ schedule property.
20. The sale deed marked as Ex.B1 is executed in favour of the
defendant's father on 10.07.1967. Therefore Ex.B1 is executed prior to the
sale deed in Ex.A1, dated 14.09.1987. It is admitted by P.W.1 that the
construction on the first floor wall was made by the defendant’s father
much prior to the execution of Ex.A1. Therefore, in the absence of any
specific recital in Ex.A1, the appellant cannot claim an exclusive right over
the common wall in ‘B’ and ‘C’ schedule properties.
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21. After examining the oral and documentary evidence and
judgment of the Trial Court, the First Appellate Court concurred with the
findings rendered by the Trial Court that the plaintiff as well as the
defendant cannot assert an exclusive claim over the common wall by
observing that as the vendors of the plaintiff and defendant are brothers
who obtained the properties through partition, the wall in the northern side
of the ‘A’ schedule property appears to be a common wall. The First
Appellate Court has considered the partition deed dated 22.06.1942
marked as Ex. A9 which makes it clear that Appavu Reddiyar possessed
the properties of the plaintiff and the defendant. The said northern wall
was allotted to Appavu Reddiyar vide Ex.A9. The First Appellate Court
considered that the vendors of the plaintiff and the defendant obtained the
properties as descendants of the said Appavu Reddiyar and as such the
evidence of P.W.1 and documents marked as Ex's.A1 and A9 show that
the wall is used as a common wall. Therefore, the First Appellate Court has
rightly taken a view on the strength of oral and documentary evidence that
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the vendors of the plaintiff and the defendant have used the wall as a
common wall. Accordingly, the First Appellate Court rejected the appeal
filed by the appellant/plaintiff and confirmed the decree and judgment of
the Trial Court. Aggrieved by the same, the above second appeal has been
filed.
22. Apart from the above documents, the Advocate
Commissioner's report marked Ex.C1 indicates that the appellant and the
respondent are commonly enjoying the wall to rest their respective
buildings. In such factual scenario, this Court feels that the Courts below
has rightly analysed and passed the concurrent judgment.
23. When this second appeal was listed for admission, notice
was issued to the respondent. This Court has not admitted the second
appeal on any substantial question of law. In the absence of any substantial
question of law for consideration, this Court has carefully gone through the
materials available before this Court and the judgments of the Courts
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below. This Court finds that no interference is required in the concurrent
findings of the Courts below.
24. In view of the above, the Judgment and Decree in A.S.
35/2011 dated 17.08.2012 passed by the Subordinate Court,
Madurantakam is hereby confirmed. The Second Appeal is dismissed. No
costs. Consequently, the connected miscellaneous petition is also closed.
24.10.2024
Index :Yes/No
Speaking/Non-Speaking Order
Neutral Case Citation : Yes/No
To:
1. The Subordinate Court, Madurantakam.
2. The District Munsif Court, Madurantakam.
3. The Section Officer, V.R.Section, High Court of Madras.
klt
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N.SENTHILKUMAR, J.
klt
Pre-Delivery Judgment in
and
24.10.2024
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